Eric Posner on "Socialized Law"

Socialized Law Would Be a Massive, Unworkable Nightmare

Eric Posner

The New Republic

February 4, 2014

In days of old, litigants would hire champions to assert their claims in trial by battle. The rich could afford more skilled warriors, and so were more likely to win their lawsuits (and less likely to lose their heads). One could imagine proto-liberals at the time proposing, quite sensibly, that everyone receive a champion of equal quality. Whether this would have improved justice is another matter.

Our legal system today is less arbitrary but this type of unfairness remains. Currently, a lawyer can charge you whatever he or she wants. If you are charged with manslaughter, you might hire a lawyer for, say, $100 per hour, or you might find a better lawyer who charges $500 per hour. You get what you pay for: your chance of acquittal is higher if you shell out the $500. This is unfair, but is it a serious problem for which there is a reasonable solution?

There are many reasons for thinking that this problem is more modest than it first appears. Most ordinary people never sue, or are sued. Ironically, they are protected by their lack of wealth. Lawyers won’t bring cases against someone who causes a car accident because most people own few assets, and nearly all of their assets are protected by law from collection. Most people buy insurance, and so if they injure someone, the victim will sue the insurance company, and if they are injured, their insurance company will pay them and then sue the wrongdoer.